« AnteriorContinuar »
Anglican self-government requires that every institution of local self-government shall have the right to pass such by-laws as it finds necessary for its own government, without obtaining the consent of any superior power, even that of the crown or parliament, and that of course such by-laws shall stand good in the courts of law, and shall be as binding upon every one concerned as any statute or law. I believe that it is in the Anglican system of liberty alone, that by-laws are enacted and have full force without consent of superior power. There are in other countries exceptions, but they are rare indeed, and very limited in power, while the by-law is the rule in our system. The whole subject of the by-law is characteristic and important, and stands out like the comprehensive and peculiar doctrine of the Anglican warrant. The character of self-government is moreover manifested by the fact that the right of making by-laws is not derived from any grant of superior power, but has been ever considered in the English polity as inherent in the local community—a natural right of the freemen. Coke says, with reference to these laws and their force: “Of more force is the agreement of the folk and people than the grant of the king ;"\/ and in another place he says: “The inhabitants of a town, without any custom, may make ordinances or by-laws for any such thing which is for the general good of the public, unless indeed it be pretended by any such by-law to abridge the general liberty of the people, their inherent birthright, assured to all by the common law of the whole land, and which that common law, in its jealous regard for liberty, does not allow to be abrogated or lessened even by their own consent-much less, therefore, by the consent of their delegates in parliament."9
magistrate, was a justice of the peace in his county, in which he was imitated by John Adams, and, perhaps, by many of the other ex-presidents.
78 Reports, p. 125.
It may be added that by-law does not mean, as many suppose, additional law, law by the side of another or complementary, but it means law of the place or community, law of the bye or pye, that is of the collection of dwellers, or of the settlement as we, in America, perhaps would most naturally express it. 10
8 5 Reports, p. 63. 9 Ibid. p. 64.
10 See Smith's Local Self-government, page 230. The quotations from Coke to which the three last notes refer are likewise in Smith's work, which I recommend to every reader.
By, in by-law, is the same syllable with which the names of many English places end, such as Derby, Whitby, and is etymologically the same with the German Bauen (to build, to settle, to cultivate), which is of the same root with the Gothic Bua and Boo, and especially the frequentative Bygga, aedificare. See Adelung ad verbum Bauen. It is a word which runs through all the Teutonic languages, ancient and modern.
Gradually, indeed, bye-laws came to signify laws for a limited circle, a small society, laws which any set of men have the right to pass for themselves within and under the superior law, charter, &c., which constitutes them into a society, and thus it happened that bye-law was changed into by-law, as we have by-ways, roads by the side of others. It cannot be denied that by-law at present is used in the sense of law passed by the side, as it were, of another and main law. Very few persons know of the origin, and the present sense of by-law is doubtless that of collateral,
expletive or subordinate law. Such double derivations are not un-